Betts

Plaintiff filed his bill of complaint on January 25, 1933, to enjoin the Railroad Commission of the State of California and its officers from enforcing two certain orders heretofore made by the Commission directed against plaintiff and, pending the hearing of the ease, to grant an interlocutory injunction. Since plaintiff thus sought to restrain the execution of an order of an administrative board acting under the statutes of the state, the application for interlocutory injunction was heard by three judges. 28 USCA § 380. The motion of the Railroad Commission to dismiss the bill was heard at the same time.

Plaintiff, a truck operator, was cited before the Railroad Commission upon a complaint duly filed for operating trucks as a common carrier without a certificate of public convenience and necessity required by the Public Utilities Act of California. St. Cal. 1915, p. 115, as amended.

At the hearing before this court, at which plaintiff’s application for an interlocutory injunction was heard, it appeared from the allegations of the plaintiff’s bill and the return to the order to show cause issued by this court against the Railroad Commission, that on complaint filed with the…

(concurring).

I concur. Plaintiff’s contention throughout has been that he is acting as a private, and not as a public carrier. That matter was decided adversely to him in the litigation before the Railroad Commission and before the state Supreme Court. He correctly contends that the jurisdiction of the Railroad Commission is confined to public carriers and that it has no> jurisdiction over private carriers. It does, however, have jurisdiction to determine whether or not a carrier is public or private. Such determination is essential to the exercise of its jurisdiction. The Supreme Court of the state has power to review the matter of the jurisdiction of the Railroad Commission. The present attack upon the orders of the Railroad Commission and of the state Supreme Court are collateral, and in such a proceeding the determination of the' state court upon the question of jurisdiction is conclusive. In addition to the cases cited upon this point by Judge COS GRAVE, the recent decision of the Supreme Court in American Surety Company v. Baldwin (Baldwin v. American Surety Company), 287 U. S. 156 , 53 S. Ct. 98 , 77 L. Ed. 231 , 86 A. L. R. 298, and Johnson v. Manhattan R. Co., 289 U. S.…